Braams and 2 Ors v Hunters Beach Investments Pty Limited

[2002] NSWCA 166

CITATION:	Braams & 2 Ors v Hunters Beach Investments Pty Limited [2002] NSWCA 166
FILE NUMBER(S):	CA 40605/01
HEARING DATE(S):	29/05/02
JUDGMENT DATE:	29 May 2002
PARTIES :	Garry Arnold Braams & 2 Ors v Hunters Beach Investments Pty Limited
JUDGMENT OF:	Ipp AJA at 1

LOWER COURT JURISDICTION :	Supreme Court - Court of Appeal
LOWER COURT FILE NUMBER(S) :	40605/01
LOWER COURT JUDICIAL OFFICER :	Registrar Irwin

COUNSEL:	R K Eassie (Applicants 2 & 3) T G R Parker (Respondent)
SOLICITORS:	Etheringtons (Applicants 2 & 3) Shanahan Tudhope (Respondent)
CATCHWORDS:	SECURITY FOR COSTS - application for review of Registrar's orders - whether security for costs should be increased - whether applicants were prejudiced by unnecessary delay on the part of the respondent in applying for additional security - principles - onus of proof - no evidence to support prejudice - application for review dismissed. ND
CASES CITED:	Buckley v Benal Design and Constructions Pty Limited (1974) 1 ACLR 301 Loreva Pty Limited v CEFA Associated Agencies Pty Limited (1982) 7 ACLR 164 QBE Workers Compensation NSW Pty Limited v The Sports Pit Pty Limited (unreported, Supreme Court NSW, 12 October 1995)
DECISION:	(1) Application for review is dismissed with costs (2) The security of $25,000 is to be paid by the applicants, by 12 noon on 11 June 2002 (3) The respondent has leave to raise the issue of costs thrown away before Handley JA on 12 June 2002 (4) The respondent has leave to file its application for further security for costs, this application to be heard by the registrar after 12 June 2002

CA 40605/01

IPP AJA

Wednesday, 29 May 2002

BRAAMS & 2 ORS v HUNTERS BEACH INVESTMENTS PTY LIMITED

Judgment

(On application for review of orders)

1 IPP AJA: This is an application for review of orders made by Registrar Irwin on 22 and 23 April, and 6 May 2002.

2 The Court’s task in determining this application has been made considerably easier by a helpful approach to the matter by Mr Eassie, counsel for the applicants, who assisted in the determination of the issues by, quite properly, making concessions on points that were essentially unarguable.

3 At the hearing this morning, Mr Eassie abandoned the application for review of the order of 22 April 2002 and I need say no more about that.

4 On 23 April 2002, the registrar ordered that further security be provided in the sum of $25,000 and reserved leave to the applicants to apply to vary that order.

5 On 6 May 2002, the registrar refused an application made by the applicants to vary the order of 23 April.

6 It is quite apparent that, in making the orders of 23 April and 6 May 2002, the registrar accepted that the respondent was entitled to an order for security for costs, and that the only issue before him was the amount of security that was to be provided. The registrar came to this view by reason of the fact that, on 17 September 2001, Hodgson JA, by consent, ordered that the applicants provide security for costs and on 15 October 2001, Fitzgerald AJA ordered the applicants to provide security in the sum of $15,000 but reserved leave to them to apply for further security on 48 hour’s notice, should that sum prove to be inadequate.

7 In my opinion, the registrar was entirely correct in his approach to the applications before him. Mr Eassie accepted this and did not contend to the contrary.

8 Thus, the applications made to the registrar (and the decisions made by him that are the subject of this application for review) did not concern the question whether, in principle, security should be ordered. Rather, they concerned only whether the security should be increased and, if so, by how much.

9 It follows that the only challenges that the applicants can mount in this application for review are challenges to the decision on 23 April to increase by $25,000 the security provided and to the refusal on 6 May to review that decision.

10 Mr Eassie submitted that the applicants had been prejudiced by an unnecessary delay on the part of the respondent in applying for additional security pursuant to the leave granted by Mr Justice Fitzgerald. He said that that delay comprised the period from 31 January 2002 - when the appeal was set down for hearing - to 16 April 2002, when the respondent filed the application for further security for costs (which led to the registrar’s decisions of 23 April and 6 May). It was principally on this ground that he contended that the security should not have been increased.

11 Mr Eassie quite properly accepted that, on the authorities, the onus was on the applicants to show that they had indeed been prejudiced by the delay. He said that the prejudice the applicants relied upon was the incurring of further costs.

12 Thus, the onus was on the applicants to prove that they had in fact incurred additional costs by reason of the delay and that, but for the delay, they would not have incurred these costs: Buckley v Benal Design and ConstructionsPty Limited (1974) 1 ACLR 301 at 309, Loreva PtyLimited v CEFA Associated Agencies Pty Limited (1982) 7 ACLR 164.

13 The fundamental difficulty faced by the applicants was that there was no evidence to support either proposition, namely (a) that they had incurred additional costs and (b) that but for the delay they would not have incurred those costs. Thus, there was nothing that could be said on this score by the applicants (and, in fact, in the end, nothing was said).

14 Mr Eassie submitted, further, that the relevant circumstances, having a bearing on the quantum of security, had not altered since 15 October 2001, when Fitzgerald AJA made his orders. It was, however, accepted that the respondent has incurred considerable additional costs since then. The registrar was entitled to take this into account. This he did on 23 April when he ordered an increase of $25,000 in the security to be provided.

15 I accept (as was held in QBE Workers Compensation (NSW) Pty Limited v The Sports Pit Pty Limited, (unreported Supreme Court of New South Wales, 12 October 1995) that the review before me is akin to a hearing de novo and that the Court does not have to find any error of law on the part of the registrar. Nevertheless, I am not persuaded that, in the light of the additional costs so incurred, the registrar was wrong in concluding that an order for further security was warranted. Nor am I persuaded that the registrar was wrong in the quantum of costs he ordered.

16 In the circumstances, the application for review is dismissed with costs.

17 I would make the further orders:

1. The security of $25,000 is to be paid, by the applicants, by 12 noon on 11 June, 2002.

2. The respondent has leave to raise the issue of costs thrown away before Handley JA on 12 June 2002.

3. The respondent has leave to file its application for further security for costs, this application to be heard by the registrar after 12 June 2002.

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